Kerala High Court
Thomas John vs State Of Kerala on 9 October, 2025
Author: C.S.Dias
Bench: C.S.Dias
2025:KER:75055
WP(C) NO. 16993 OF 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 9TH DAY OF OCTOBER 2025 / 17TH ASWINA, 1947
WP(C) NO. 16993 OF 2025
PETITIONER/S:
THOMAS JOHN
AGED 65 YEARS
S/O. ULAHANNAN, CHATTHAM KANDATHIL, PUTHUPPADY.P.O,
KOTHAMANGALAM ERNAKULAM, PIN - 686673
BY ADV SRI.P.VISHNU PRASAD
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY, MINISTRY FOR LOCAL
SELF GOVERNMENT DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
2 KOTHAMANGALAM MUNICIPALITY
P.B NO.15, KOTHAMANGALAM, ERNAKULAM REPRESENTED BY
ITS SECRETARY, PIN - 686691
3 THE SECRETARY
KOTHAMANGALAM MUNICIPALITY, P.B NO.15,
KOTHAMANGALAM, ERNAKULAM, PIN - 686691
4 CHIEF TOWN PLANNER
OFFICE OF CHIEF TOWN PLANNER, TOWN AND RURAL
PLANNING DEPARTMENT, TRIVANDRUM, PIN - 695001
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WP(C) NO. 16993 OF 2025
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5 SENIOR TOWN PLANNER
REGIONAL TOWN PLANNING OFFICE, TOWN AND RURAL
PLANNING DEPARTMENT, ERNAKULAM, PIN - 682016
BY ADV
SR.GP.SMT.PREETHA K.K
SHRI.JOICE GEORGE, SC, KOTHAMANGALAM MUNICIPALITY
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 09.10.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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WP(C) NO. 16993 OF 2025
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C.S.DIAS, J.
---------------------------------------
W.P.(C) No.16993 of 2025
-----------------------------------------
Dated this the 9th day of October, 2025
JUDGMENT
The petitioner is the owner in possession of a
property situated within the territorial limits of the 2 nd
respondent-Municipality. On the basis of Ext.P2 building
permit, the petitioner completed the construction of the
building. However, the 2nd respondent is not numbering
the building on the ground that as per the Detailed Town
Planning Scheme (DTP scheme), the petitioner's property
is intended for acquisition for public and semi-public zone
development. Consequently, the petitioner submitted
Ext.P6 purchase notice under Section 67 of the Kerala
Town and Country Planning Act, 2016 ('Act", in short)
before the 3rd respondent on 02.07.2025, which is
evidenced by Ext.P7 acknowledgment card. Even after the
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lapse of 60 days, the respondents 2 and 3 have not
purchased the property. Therefore, the contention of the
respondents 2 and 3 is untenable and they have lost the
right to acquire the property. Hence, the petitioner is
entitled to get the building permit as envisaged under
Section 67 of the Act and the law laid down by this Court
in Thalassery Municipality v. Puthalath Balakrishnan
(2019 (3) KLT 154) and Abul Hakeem v. Manjeri
Municipality and Another (2018 (1) KLT 1026). In a
case of identical nature, this Court has passed Ext.P5
judgment. The petitioner is entitled to the benefit of
similar judgment.
2. In the statement filed by the 5 th respondent, it is
contended that, the DTP Scheme for the Municipal Park
and Market Complex, Kothamangalam was sanctioned as
per the Government Order dated 28.02.1997 under sub-
section (3) of Section 12 of the Town Planning Act, 1108.
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From the date of sanctioning, the regulation as per this
plan applies to the entire planning area. Therefore, any
construction carried out in the land conform to the
provisions of the DTP Scheme. It is in such circumstances
that the 2nd respondent-Municipality has denied to
number the petitioner's building. Hence, the writ petition
may be dismissed.
3. Heard; the learned counsel for the petitioner,
the learned Special Government Pleader, and the learned
Standing Counsel appearing for the respondents 2 and 3.
4. It is not in dispute that the DTP Scheme for the
2nd respondent-Municipality was published on 28.02.1997.
The 3rd respondent issued Ext.P2 building permit in favour
of the petitioner to construct a commercial building in his
property. It is after carrying out the construction that, the
3rd respondent has refused to number the building on the
ground that the petitioner's property is included in the
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DTP Scheme. It was in the said backdrop, the petitioner
submitted Ext.P6 purchase notice under Section 67 of the
Act, requesting the 2nd respondent to purchase the
petitioner's property. However, even after the lapse of 60
days, the respondents 2 and 3 have refused to purchase
the property.
5. In light of the above undisputed facts and for
the proper adjudication of the dispute, it is essential to
refer to Section 67 of the Act, which reads as follows:
"67. Obligation to acquire land in certain cases. - (1) Where any
land is designated for compulsory acquisition in a Master Plan or
Detailed Town Planning Scheme sanctioned under this Act and no
acquisition proceedings are initiated for such land under the
Land Acquisition Act in force in the State within a period of two
years from the date of coming into operation of the Plan, the
owner or person affected may serve on the Municipal
Corporation, Municipal Council, Town Panchayat or Village
Panchayat concerned, within such time and in such manner, as
may be prescribed, a notice (hereinafter referred to as "the
purchase notice") requiring the Municipal Corporation, Municipal
Council, Town Panchayat or Village Panchayat concerned to
purchase the interest in the land in accordance with the
provisions of this Act;
(2) On receipt of any purchase notice under sub-section (1), as
soon as possible, but not later than sixty days from the date of
receipt of the purchase notice, the Municipal Corporation,
Municipal Council, Town Panchayat or Village Panchayat, as the
case may be, through a resolution decide to acquire the land,
where the land is designated for compulsory acquisition for the
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purpose of the Municipal Corporation, Municipal Council, Town
Panchayat or Village Panchayat.............."
6. While construing Section 67 of the Act, in a
case of identical nature, a Division Bench of this Court in
District Town Planner, Malappuram and Others v.
Vinod and Others [2019 (3) KHC 673] has held as
follows:
"9. A reading of the provisions of the Act, 2016 and the
Municipality / Panchayat Building Rules indicates that the DTP
Schemes prepared under the Act, 2016 are to have overriding
effect over the provisions of the Building Rules. Accordingly, the
procedure under S 67 has to be followed in case the project
envisaged under the DTP Scheme involves acquisition of land by
the Local Authorities as a pre-requisite for implementing the
proposal.
10. The provisions of S.67 of the Act, 2016 are intended to
balance the conflicting rights of the State and the private
individual. While the State has the right to reserve lands for
development proposals in public interest, the said right cannot be
exercised in a manner designed to frustrate the Constitutional
rights of the private individual under Art.300A, to deal with his
property in the manner he chooses. A balance is therefore struck
by directing the State to take affirmative action for implementing
the proposal within a specified time frame, failing which, the
private individual is to be given the unfettered freedom to use his
land for other permissible purposes"
*** *** ***
12. The above provision in the Act, 2016 would imply that where
any land is designated for compulsory acquisition in the Town
Planning Scheme but no acquisition proceedings are initiated
within a period of two years from the date of coming into
operation of the Plan, the owner or the affected person may serve
a purchase notice, requiring the authority to purchase the interest
in the land. If any such purchase notice is served, within 60 days
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from the date of receipt, the authority is statutorily required to
decide on acquisition of the property. If the land is designated for
any Government Department or other authorities, the information
on the receipt of purchase notice is to be forwarded to the said
authority. In case decision is taken by the concerned authority not
to acquire the land, variation of the development plan should be
made. Even otherwise, when the land acquisition could not be
effected within two years from the date of resolution to acquire
the land, the authorities are required under sub-section (5) of
S.67 of the Act, to initiate suitable variation of the Plan. As can be
seen, the statutory consequences for failure of the authority to
acquire the land notified under the Town Planning Scheme is
clearly delineated. Thus, the Act, 2016 itself suggests that the
property owner cannot be indefinitely deprived of his right to
enjoy the property, without finality on the acquisition of the land,
earmarked under the DTP Scheme.
*** *** ***
14. The implication of the Act, 2016 as explained above appears
to be sound and we are in agreement. It would therefore be
logical for us to conclude that the respondents/writ petitioners
cannot be prevented from lawful enjoyment of their property,
merely because such property is included in the DTP Scheme of
the Thalassery Municipality. It does not however mean that the
authorities are deprived of their right to acquire the land at a
future date, if the same would be needed for the development
Scheme of the Town. The only burden in that future event would
be, the need to compensate the owner to the extent of
development or the construction, made over the property."
7. The above legal position was reiterated by
another Division Bench of this Court in Pradeep Kumar
P.B. and Others v. Maradu Municipality and Others
[2022 (3) KHC 253], wherein the Division Bench, after
considering the legal principles laid down by Hon'ble
Supreme Court in Raju S. Jethmalani and Others v.
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State of Maharashtra and Others [2005 KHC 1983],
and this Court in Vinod's case (supra) and District
Town Planner, Thrissur v. Joby M.C. and Others
[2020 (6) KHC 455], has held that once the modality
contained under Section 67 of the Act is completed, the
Secretary of the Municipality is obliged to consider the
application for building permit and issue the same in
accordance with the provisions of the Kerala Municipality
Act, 1994 and Kerala Municipality Building Rules, 2019.
8. In Padmini v. State of Kerala [1999 KHC
619], a Division Bench of this Court while considering an
application for building permit in the context of a town
planning scheme has held that the rejection of permission
to construct a building would tantamount to deprivation of
the property of the parties without the authority of law
and in violation of Article 300 A of the Constitution of
India.
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9. On a consideration of the facts and the
materials on record, and the law referred to aforecited
decisions and further the failure on the part of the
respondents 2 and 3 to purchase the petitioner's property
even after a lapse of more than 60 days after the receipt
of Ext.P6 purchase notice, I am of the definite view that
the petitioner's indefeasible right to get his building
numbered has accrued. The said right cannot be
frustrated by the respondents on the ground of
anticipated development. Therefore, I accept the
contention of the petitioner and hold that the petitioner is
entitled to the reliefs prayed for in the writ petition.
Accordingly, I allow the writ petition by quashing Exts.P3
and P4 communications and directing the 3 rd respondent
to number the petitioner's building, in accordance with
law and as expeditiously as possible, at any rate, within
60 days from the date of production of a copy of the
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judgment.
The writ petition is disposed of accordingly.
Sd/-
C.S.DIAS, JUDGE
dkr
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WP(C) NO. 16993 OF 2025
APPENDIX OF WP(C) 16993/2025
PETITIONER EXHIBITS
EXHIBIT P1 A TRUE COPY OF THE RECEIPT DATED
24.02.2024 ISSUED BY THE KOTHAMANGALAM
MUNICIPALITY
EXHIBIT P2 A TRUE COPY OF THE BUILDING PERMIT DATED
27.02.2024, ISSUED BY THE KOTHAMANGALAM
MUNICIPALITY
EXHIBIT P3 A TRUE COPY OF THE NOTICE DATED
10.09.2024 ISSUED BY THE KOTHAMANGALAM
MUNICIPALITY
EXHIBIT P4 A TRUE COPY OF THE LETTER DATED
09.04.2025 ISSUED BY THE KOTHAMANGALAM
MUNICIPALITY
EXHIBIT P5 A TRUE COPY OF THE JUDGMENT DATED
21.10.2013 IN W.P.(C) NO. 19538 OF 2013
EXHIBIT P6 TRUE COPY OF THE PURCHASE NOTICE, DATED
02.07.2025
EXHIBIT P7 TRUE COPY OF THE ACKNOWLEDGEMENT DATED
10.07.2025 ISSUED IN KSMART ONLINE PORTAL
